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HomeMy Public PortalAbout014-2011 - Parks - Richmond CWB LLC - FacilitFACILITY USAGE AGREEMENT THIS AGREEMENT made and entered into this _16th day of February_, 2011, and referred to as Contract No. 14 -2011 by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Parks and Recreation (hereinafter referred to as the "Department") and Duke Ward & Company by and through its Collegiate Wooden Bat Baseball Team, known as Richmond CWB, LLC, P.O. Box 158, Richmond, Indiana, 47374 (hereinafter referred to as the "Team"). In consideration of the mutual promises exchanged herein, it is agreed as follows: I. GENERAL TERMS 1. Team will have full tenant use of the McBride Stadium (hereinafter "facility") for four (4) years, effective January 1, 2011, until December 31, 2014. Additional tenancy terms will be negotiated at the end of the term. 2. Team will pay thirty-five (35%) percent of all utilities (electric, natural gas, water and sewer) each month during the term of this contract. A statement will be supplied to the Team by the Park Department Business Manager each month and payment will be made payable by the Team to the Richmond Park Department within fifteen (15) days of receipt of the statement. Costs for other utilities, including but not limited to phone and cable, will be the sole responsibility of the Team. II. RESPONSIBILITIES OF THE TEAM 1. Team will be responsible for any customary preparation of the facility prior to Team's scheduled activity and shall restore or repair the facility after each use so that the facility will be ready for the next scheduled activity. The Department will allow the Team to use the Department's equipment to comply with this term upon request by the Team and upon reasonable availability of equipment. 2. Team will purchase all products that are field related, including but not limited to chalk and field dry products. 3. Team will be responsible for the day-to-day maintenance, mowing, and upkeep of the field, the entrance to the facility, and areas surrounding the field. Team will also be responsible for day-to-day cleaning and basic maintenance of the offices, restrooms, concession buildings, locker rooms, ticket offices, press box, and any other structure on the premises. Contract No. 14-2011 4. Team will be responsible for purchase of supplies to operate the facility, including but not limited to toilet paper, paper towels, locker room supplies, and cleaning supplies. 5. Team will be cooperative with the Park Department and give priority scheduling to Park Department events, provided that such events do not conflict with previously scheduled events, and secondary scheduling priority, Richmond High School (Varsity and Jr. Varsity) baseball teams, Earlham College baseball teams, and the American Legion baseball teams. Team will provide the Department with a facility schedule via e-mail once per month, or within a reasonable time upon request by the Department. 6. Team will make the facility available to other City of Richmond or Wayne County baseball events when possible. 7. Team will provide ticketing and concession operations to all events conducted at the facility. Each year, Team will reimburse the Park Department ten (10%) percent of net sales on concessions after a net sales threshold of Five Thousand Dollars and No Cents ($5,000.00) has been reached for the following events: Earlham College games, Richmond High School games, American Legion games, and any City of Richmond or Park Department initiated and/or promoted events. Reimbursements will be made monthly once the yearly threshold is met. No other sale of food or drink will be allowed. III. RESPONSBILITIES OF THE CITY PARKS DEPARTMENT 1. City will maintain and provide the following responsibilities as landlord: a. Maintenance and repair of structures; b. Maintenance and repair of all mechanical systems including, but not limited to, electrical, plumbing, HVAC, sewers, watering system, sound system, and any City owned concession equipment; C. Maintenance, repair and/or replacement of stadium lighting, including bulbs; and d. Maintenance and repair of roadways, traffic lanes, parking facilities, and parking lot lighting. 2. City will provide all necessary trash receptacles (Rosie Rollers) including recycling containers and dumpsters. 3. City will provide portable toilets necessary in the spring prior to water being turned on in facility washrooms. Page 2 of 5 IV. ADDITIONAL RESPONSIBILITIES 1. Pursuant to Indiana Code 22-9-1-10, Team, any sub -contractor, or any person acting on behalf of the Team or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. 2. This Facility Usage Agreement will be deemed to have begun on January 1, 2011 and shall expire on December 31, 2014. 3. The Team will be issued no more than four (4) keys to the facility, which keys will be issued no earlier than January 1, 2011, and must be returned to the Department no later than December 31, 2014. Should the Team need more than 4 keys or should any key be lost or stolen the fee will be Twenty-five Dollars and No Cents ($25.00) per key, payable by the Team to the Department. 4. Team shall remove all trash and debris after each Team event and place any such trash and debris into the provided trash receptacles or dumpsters at the McBride Stadium and shall obey all rules and regulations set forth by the Richmond Parks and Recreation Department and any applicable laws of the City of Richmond, Indiana. 5. Team shall procure a general liability insurance policy with limits of liability no less than $2,000,000.00 per person and $2,000,000.00 per occurrence. The City of Richmond shall be named as a co-insured on such policy. Team shall provide the Department with a copy of such policy or Certificate of Coverage on or before January 1, of each year and shall not be permitted to engage in activities at the facility until proof of coverage is provided. 6. Team and its spectators must abide by all rules and regulations of the Department, including but not limited to, any applicable posted hours. 7. Department may order Team to cease or relocate its activities at any time should it be necessary for the proper use, safety or enjoyment of the facility. Reasons for such an order could include, but are not limited to, damages to the facility due to natural disasters ("Acts of God") or extreme weather events, damages to facility by parties outside this Agreement which affect the safety of the facility, or breach of this Agreement by Team. 8. Team agrees to indemnify, release, and hold harmless the City of Richmond, the Parks Department, and all employees, officers, or agents of the same of any liability that may arise from the use of the facilities by the Team. Likewise, the City and Park Department agree to indemnify, release, and hold harmless the Team and all Page 3 of 5 employees, officers, or agents of the same of any liability that may arise from the use of the facilities by the Park Department. 9. This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. It shall be controlled by Indiana law and shall be binding upon the parties, their successors and assigns. It constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing the Agreement a written instrument setting forth such changes by both parties. 10. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which constitute but one and the same instrument. 11. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Agreement, if any, must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said court 12. Any person executing this Agreement in a representative capacity hereby warrants that he or she has been duly authorized by his or her principal to execute this Agreement. 13. In the event of any breach of this Agreement, and in addition to any damages or remedies, the breaching party shall be liable for all costs incurred due to the enforcement of this Agreement, including but not limited to reasonable attorney's fees. 14. A breach of this Agreement shall include, but not be limited to, failure of Team to comply with any of the terms of this Agreement, failure to procure and maintain appropriate levels of general liability insurance as set forth in the terms of this Agreement, or failure to adhere to all federal laws, state laws, and local ordinances. In the event Team is able to cure or resolve any action or situation that caused the breach, City will not hold Team in default if such cure is able to be performed within thirty (30) days of the date breach is deemed by the City to have occurred. City shall provide Team with written notice of the breach by first-class mail, and Team shall have thirty (30) days from the receipt of notice of breach or default to perform said cure. 15. In the event Team is unable to cure or resolve the breach, City may declare Team in default and breach of this Agreement, and shall proceed with any action necessary to take possession of the facility. In the event of an emergency, City shall immediately proceed with any action necessary to take possession of the facility. City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination. 16. In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, Page 4 of 5 and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Parks and Recreation By:_S/S Karen Montgomery Karen Montgomery, President By:_S/S Mike Foley Mike Foley, Vice President By:_S/S Gary Turner Gary Turner, Secretary By:_S/S Avis Stewart Avis Stewart, Member Date: February 16, 2011 APPROVED: S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: February 17, 2011 "CONTRACTOR" RICHMOND CWB, LLC By:_S/S Deanna Beaman Printed: (—Deanna Beaman ) Title: —General Manager Date: February 23, 2011 Page 5 of 5